Employers who wish to nominate a foreign employee for ENS Subclass 186 visa (permanent residence) will be required to evidence that there is a genuine need for an employee to occupy certain position on a permanent and ongoing basis.
This criterion is applicable to Temporary Residence Transition Stream as well as Direct Entry Stream respectively. The appears to be a level of misunderstanding regarding this requirement, particularly, that such evidence needs to come in a form of Labour Market Testing (similar to the process of sponsoring a TSS employee). The purpose of this article is to clarify this requirement and provide suggestions in terms of evidence could be provided by an employer for the Department to consider.
Temporary Residence Transition Stream (TRTS):
Looking at the Policy extract for TRTS, paragraph 5.19(5)(k) requires the nominator to have a genuine need to employ the person to work in the position under their direct control.
Since implementation of the TSS visa, there is no longer an assumption, or “automatic right” to a pathway to permanent residence, there is a specified genuine need for the nominee to remain employed in the nominated position.
When assessing ‘genuine need’, Home Affairs will take into account the following:
- establish that there indeed exists a vacancy for the nominated position, and
- verify claims made in the subclass 457/TSS nomination pertaining to genuine need where concerns about their validity exist.
Note – This is not the same as having to provide evidence of Labour Market Testing for TSS visa.
What evidence will the Department consider?
The application form itself will provide answers to a number of questions associated with the position. For example, length of employment, business structure, industry sector and number of foreign employees employed by the business.
Financial annual report should provide case officers with insight relating to any increased activity within the business. A small business may consider including evidence of any future expansion (for example, new contracts and projects won). The Department will also consider whether refusal of the nomination is likely to impact the business in adversely.
Direct Entry applications (DE):
Threshold for Direct Entry applications is somewhat higher given that an employee (in the eyes of the Department) is largely considered to be untested in the Australian Labour Market by the Department. Specific Direct Entry Requirements are outlined below:
Scenario 1 - perform activities to lead or assist with the diversification
An example would be where a business that is currently involved in running a restaurant nominates the position of business development manager on the premise that they wish to start up or purchase a number of restaurants.
In this instance, a case officer would need to be satisfied that the business has the intention and the financial capacity to support such business expansion, taking into account any evidence provided, including:
- evidence of appropriate market research
- business plans detailing proposed expansion and timelines
- financial budgets covering expenditure and anticipated revenue
- evidence of availability of funding (such as own funds or bank loans).
It is strongly advised that Genuine Need for DE applications are supported by submission on behalf of the employer to ensure that all supporting documentation is considered appropriately by the case officer.
Scenario 2 - work within the diversified (new) environment
An example would be a business that is currently involved in running fitness centre and decide to nominate a Chiropractor on the basis that they intend to diversify their business operations.
Decision-makers would need to be satisfied that the business has the capacity and intention to diversify their business activity, taking into account any evidence provided, including:
- business plans including financial budgets covering expenses and anticipated revenue
- availability of business premises (evidence of lease or purchase of proposed location)
- evidence of lease or purchase of equipment
- evidence of availability of funding (such as own funds or bank loans).
Information that may be considered adverse information should also be addressed in order to ensure that full context of the situation is adequately presented.
Any of the following actions by the nominating employer regarding other employees, including Australian workers, in the nominated occupation or similar occupations may be indicative of the nominated position not being genuinely needed:
- retrenchment in the previous 12 months
- reduction of hours worked during the previous 12 months
- reduction in pay and conditions within the previous 12 months
- employment of a temporary visa holder on conditions less favourable than those for Australian employees, or
- recruitment of temporary visa holders beyond the ordinary scope of the operation of the business
Each case will be different, and it is important to ensure that the nature of the business, details pertaining the position are sufficiently presented to Home Affairs, particularly in relation to Direct Entry applications. Other factors including size of the business, whether the business has previously nominated an employee for permanent residence under ENS will also be considered by the Department.
Legal Training Australia will be running several Category A workshops in May/June/July. The purpose of the workshops is to provide Registered Migration Agents up to date practical tips associated with TSS/ENS nominations. The workshops are beneficial for migration agents of all levels and can be booked online using the following link:
- 6:30PM to 8:30PM: Business Sponsorship and TSS Visas 2019 Edition - (Intensive) (Inclusive of SAF and 2019 Policy Updates) - 2 Category A CPD points - 28th May 2019
- 12PM to 2PM: ENS - Including Regional Sponsorship and RCB plus SAF - 2 Category A CPD points - 28th May 2019
- 12PM to 1PM: Business Sponsorship and TSS Visas Intensive 1 Category A CPD point - 4th June 2019
- 12PM to 1PM: Employer Nomination Scheme including SAF and RSMS - 1 Category A CPD - 11th June 2019
- 2:10PM to 1:10PM: Employer Nomination Scheme including SAF and RSMS - 1 Category A CPD point - 14th June 2019
- 6:30PM to 8:30PM: Advanced TSS (Sc482) - strategic approaches to LMT, Genuineness, Skills, Health, and Character issues, Targeted Occupations - 2 Category CPD points - 3rd July 2019
- 6:30PM to 8:30PM: Advanced ENS & RSMS (Sc186 & 187) - 2 Category A CPD points – 24 July 2019
https://legaltrainingaustralia.com/webinar-cpd/